Tom Heys, Legal Analyst at Lewis Silkin LLP, UK member firm of Ius Laboris, examines issues employers need to be aware of during Ramadan, with the COVID-19 lockdown
Ramadan began on the evening of 23 April 2020 for countries west of Saudi Arabia and lasts for 30 days, which means that some or all of it will be taking place under the continued lockdown imposed on account of the coronavirus situation.
When is Ramadan?
The timing of the Islamic holy month of Ramadan depends upon the lunar calendar. The exact timing can never be known for certain: it is determined by the sighting of the new moon in Saudi Arabia. The first day of fasting begins the day after the new crescent moon is spotted, which can be difficult as it is only seen for around 20 minutes and is usually very faint.
What does Ramadan involve?
Ramadan involves fasting: a complete avoidance of all food and drink (even water) during daylight hours. It also means a complete avoidance of sex, smoking and negative thinking. Many people think it involves fasting during the daytime, but in fact it is a little longer. Fasting begins at Fajr, a morning prayer that takes place about an hour and a half before sunrise. After the evening prayer, the fast is often broken with dates and water to replicate the actions of the prophet Muhammed, for Iftar, the evening meal.
Because Ramadan 2020 is taking place in the late spring when days are long (the Ramadan timetable grows to 18 hours by the end of the month in the UK), it can be an especially challenging time for practising Muslims. Observing Ramadan is one of the five pillars of Islam and so is an important month. The Quran does, however, exempt a few vulnerable groups from the requirement to fast. Children, pregnant women, menstruating women, those with health problems and the elderly are excluded.
Ramadan and discrimination
In the UK, employees are protected under the Equality Act 2010 against discrimination on the grounds of religion or belief. As followers of Islam, Muslims who practice Ramadan, therefore, receive protection. The Equality Act covers various types of discrimination, but direct and indirect discrimination are most relevant to the workplace issues that may arise during Ramadan:
Direct discrimination covers less favourable treatment that is ‘because of’ religion or belief. This includes not only the religion of the person discriminated against, but also covers the religion of any other person (for example, an employee’s Muslim husband). Direct discrimination occurs, for example, where an employer fails to make allowances for followers of one religion but does make allowances for others.
Indirect discrimination can be harder to identify. It takes place when an employer applies a provision, criterion or practice (e.g. a policy), which on its face applies equally to everyone but in fact puts or would put those of a particular religion at a disadvantage. The person complaining of discrimination must actually have been disadvantaged. An employer has a defence of justification to an indirect discrimination claim if it can show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.
Workplace issues during Ramadan
Here are some of the specific contexts in which practical issues might arise at work for employees observing Ramadan.
Flexible start and finish times
As mentioned above, observers of Ramadan must fast all day beginning from a little before sunrise and ending at sunset. Because of this, employees may wish to start and finish work earlier as they may feel tired and less productive towards the end of the working day.
The current lockdown has led to changes in working arrangements and timetables for many employees. Now more than ever, work is something people do, rather than somewhere they go and those working from home are tending to start and finish at times that suit them where feasible. This culture of flexibility that has developed over recent weeks should generally help those observing Ramadan during the COVID-19 lockdown.
Scheduling and breaks
Employees should feel able to tell their colleagues that they are fasting so that colleagues and managers can consider ways in which they can be supported during Ramadan. Those observing Ramadan wake up before dawn for Suhur, their first meal of the day.
Because of possible fatigue, employers should encourage workers to take breaks every hour, particularly if they cannot work from home and are engaged in routine, monotonous work. The opportunity for breaks of this type should, however, be made available to all. If Muslim employees observing Ramadan during the COVID-19 lockdown receive preferential treatment, the employers may be at risk of discrimination claims from others.
Aside from fasting, Ramadan is a time when Muslims reflect on their faith and they may wish to pray more than they usually do during the rest of the year. For those workplaces still open and whose employees are not able to work from home, employers should consider offering a quiet space where staff may pray undisturbed.
Business lunches and offsite meetings
In normal times, mandatory business lunches hold the potential to cause a particular issue for those observing Ramadan during the COVID-19 lockdown. While employers shouldn’t assume Muslim colleagues will not want to attend, they must not cause such employees to feel pressured into agreeing to go. For other meetings, something as simple as not having biscuits on the table could demonstrate sensitivity to a Muslim colleague’s observance of Ramadan.
The fact that many business and networking events have now become virtual makes life a little easier for those keen to build relationships but also observe Ramadan. The timing of get-togethers such as ‘virtual coffees’ should, however, be carefully considered as those observing Ramadan may find it more amenable to network earlier in the day before fatigue and hunger set in.
Employers may receive more requests for holiday during Ramadan. This could cause operational issues, especially when Ramadan falls during the summer months, as there may already be significant numbers of staff wanting to take annual leave.
Eid is the three-day festival, which begins immediately after the last day of Ramadan. For many, Eid is to Muslims as Christmas is to Christians. Employers should make extra effort to allow staff to take this time off when requested. The start of Eid depends on the sighting of a new moon, so employees may not always be able to be specific about the exact date(s) they wish to take leave. It is good to recognise the particular significance of this time and be aware of the possibility of holiday requests being submitted or changed at the last minute. Employers should also consider marking Eid in an appropriate way.
Recruitment may have completely stopped for many employers during this Ramadan COVID-19 lockdown, although some industries have seen business boom. Job applicants are protected from unlawful discrimination in the same way as employees. Employers should, therefore, accommodate reasonable requests when scheduling interviews for those observing Ramadan. For example, an applicant may wish to have their interview scheduled for the morning rather than the afternoon, when they will have been fasting for several hours.
Employees whose output is monitored and who are observing Ramadan may see a drop in performance towards the end of the day. Employers should ensure that line managers are aware of the potential impact and are appropriately prepared. In addition, consideration should be given to whether it is appropriate to make allowances for any downturn in performance during Ramadan.
This is particularly the case where performance data forms part of an annual appraisal upon which decisions about an employee’s career are made, such as an annual bonus or consideration for promotion into a new role. That said, many Muslims are well practised at coping with the demands of Ramadan. Employers should be aware of the potential for an impact on performance, but not assume that any deterioration is solely down to an employee’s religious observance.
Ramadan is a special month for many and an important opportunity to spend time with family and close ones, even during this COVID-19 lockdown. It also affords an opportunity for employers to reflect on how their workplace accommodates the many different religions and beliefs of their workforce.
Employers should consider developing a specific policy on religious observance. This can help formalise the employer’s approach to dealing with the practical issues outlined above and will also provide a useful resource for both line managers and employees. The policy should deal with the employer’s approach to all religions.
Policies should, for instance, deal with the extent to which Jewish staff observing the Sabbath can adjust their work schedule in order to get home before sunset. More generally, employers should raise awareness of the existence of different groups that celebrate at different times throughout the year. Diversity training can be part of this, but even something as simple as placing a calendar of religious events on the staff noticeboard or intranet can help.
Ius Laboris has launched a Coronavirus Resource Hub to provide information and tools to help manage international workforces in these times of crisis.